Chrysler Corporation v. Department of Transp., 71-1339

• Decision Date: 05 December 1972
• Docket Number: 71-1349-1896,71-1348-1897,71-1350-1826,and 71-1546.,No. 71-1339,71-1339
• Citation: 472 F.2d 659
• Parties: CHRYSLER CORPORATION, Petitioner, v. DEPARTMENT OF TRANSPORTATION et al., Respondents. JEEP CORPORATION, Petitioner, v. DEPARTMENT OF TRANSPORTATION et al., Respondents. AMERICAN MOTORS CORPORATION, Petitioner, v. DEPARTMENT OF TRANSPORTATION et al., Respondents. FORD MOTOR COMPANY, Petitioner, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION et al., Respondents. AUTOMOBILE IMPORTERS OF AMERICA, Petitioners, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION et al., Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

472 F.2d 659 (1972)

CHRYSLER CORPORATION, Petitioner, v. DEPARTMENT OF TRANSPORTATION et al., Respondents.

JEEP CORPORATION, Petitioner, v. DEPARTMENT OF TRANSPORTATION et al., Respondents.

AMERICAN MOTORS CORPORATION, Petitioner, v. DEPARTMENT OF TRANSPORTATION et al., Respondents.

FORD MOTOR COMPANY, Petitioner, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION et al., Respondents.

AUTOMOBILE IMPORTERS OF AMERICA, Petitioners, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION et al., Respondents.

Nos. 71-1339, 71-1348-1897, 71-1349-1896, 71-1350-1826, and 71-1546.

United States Court of Appeals, Sixth Circuit.

December 5, 1972.

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John H. Pickering, Washington, D. C., for Ford.

Victor E. DeMarco, Cleveland, Ohio, for Chrysler Corp.; Jones, Day, Cockley & Reavis, Cleveland, Ohio, Keith A. Jenkins, Victor C. Tomlinson, Michael W. Grice, Detroit, Mich., on brief.

Milton D. Andrews, Washington, D. C., for Automobile Importers of America; Busby, Rivkin, Sherman, Levy & Rehm, Washington, D. C., on brief.

William E. Carroll, Detroit, Mich., for American Motors Corp. and Jeep Corp.; Cross, Wrock, Miller & Vieson, Jay A. Herbst, Detroit, Mich., on brief; Forrest A. Hainline, Jr., Vice President and Gen. Counsel ?€” American Motors Corp., Detroit, Mich., of counsel.

Raymond D. Battocchi, Washington, D. C., for appellees; Lowell Dodge, Center for Auto Safety, Washington, D. C., L. Patrick Gray, III, Asst. Atty. Gen., Walter H. Fleischer, Morton Hollander, Attys., Dept. of Justice, Washington, D. C., on brief; John W. Barnum, Gen. Counsel, Dept. of Transp., New York City, Lawrence G. Schneider, Chief Counsel, Richard B. Dyson, Frank Berndt, Asst. Chief Counsels, John G. Womack, Atty., Washington, D. C., National Highway Traffic Safety Administration, of counsel.

Before WEICK, PECK and MILLER, Circuit Judges.

JOHN W. PECK, Circuit Judge.

The petitioners, major domestic and foreign manufacturers of automobiles, have petitioned this Court for a review of an order of the National Highway Traffic Safety Administration of the Department of Transportation, adopted pursuant to the National Traffic and Motor Vehicle Safety Act of 1966, 15 U. S.C. ? 1381-1461, entitled "Motor Vehicle Safety Standard #208, Occupant Crash Protection in Passenger Cars, Multipurpose Passenger Vehicles, Trucks and Buses." The Automobile Safety Act of 1966 was enacted as a response to the alarming number of deaths and injuries resulting from automobile accidents.¹ Its expressed purpose is ". . . to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents." 15 U. S.C. ? 1381. Chrysler Corp. v. Rhodes, 416 F.2d 319, 321 (1st Cir. 1969); General Motors Corp. v. Volpe, 321 F.Supp. 1112, 1115 (D.C.Del.1970). In achieving this goal, two courses of action are open to the Agency. (See Cong. Rep. No. 1919, 89th Cong.2d Sess., 1966, 2 U.S. Code, Cong. & Admin.News 2731 (1966).) It can act to prevent accidents,² or it can act to prevent injuries in the event of accidents. Standard 208 is designed to accomplish the latter.

It is now established that most injuries caused by the impact of the automobile passenger with the steering wheel and column, the dashboard, the windshield, and other interior protrusions, can be prevented or at least ameliorated by safety-oriented vehicle design, and much attention has recently been devoted to the problem of the "second collision."³

While many injuries of this sort can be prevented by the elimination from the interior surfaces of hard projections or sharp edges (e.g.: Standard 111, 49 C.F.R. ? 571.111, S3.1.2.2) and by the use of energy absorbing steering columns (Standard 203, 49 C.F.R. 571.203), and by the application of energy absorbing materials to reduce impact forces at probable points of contact in the event of rapid deceleration, (Standard 201, 49 C.F.R. 571.201, S3.1, S3.4, S3.5), the most serious injuries can be prevented only by an occupant restraint device which absorbs the high deceleration forces while firmly preventing the passenger from being thrown against the inside of the vehicle or from being ejected out of it. The idea is to assure that when the car stops dead, the passengers don't.

I

The standard under review requires the petitioners to build into their vehicles by a specified date a specified quantum of "passive protection" through the use of "passive restraint devices." A passive restraint is defined as a protective occupant restraint device which does not depend for its effectiveness upon any action taken by the occupants beyond that necessary to operate the vehicle (36 F.R. 8296, May 4, 1971). An active restraint is a device which is not effective unless some action is taken by the occupants, the most familiar example of which is the fastening of a seat belt.

An "airbag" is a passive inflatable occupant restraint system. The term "airbag" is used generally to designate the entire system of apparatus in which a sensor, activated by the deceleration force of a collision, causes an explosive charge of compressed gas (or a gas generator) to rapidly inflate a large bag which restrains the occupant as he moves toward the windshield, dashboard or steering wheel of the car, and then deflates itself. This entire cycle, including the deflation, is completed in less than one-half second. Although the safety standard under review does not by its terms specify that airbags be used to meet the specified injury criteria, the petitioners unanimously contend that because the injury criteria of Standard 208 were established with the airbag in mind that the airbag is the only device which can be reasonably expected to satisfy these criteria, and that therefore, the standard is in reality an airbag requirement standard. Although nothing in the record justifies disagreement with the petitioners on this point,⁴ for the purposes of this opinion we do not find it necessary to distinguish between the airbag and any other form of passive restraint.

Standard 208 was first published as part of the initial federal standards issued pursuant to 15 U.S.C. ? 1392(h) on February 3, 1967 (32 F.R. 2415 (1967) "Seat Belt Installation ?€” Passenger Cars") and established the requirements for seat belt installations. No objections were made to this requirement, and the standard remained unchanged until March 10, 1970. On that date the Agency published what is now generally referred to as Revised Standard 208, New Standard 208 or, more descriptively, the Airbag Standard. The amendment procedure has produced to date a series of twenty-four notices, consisting of notices of proposed rulemaking, notices of meetings, and various final amendments to the existing standard. Not all of these notices are important to the case presented to us, but a brief review of their chronology will help to put into perspective the course of the Agency's action in the promulgation of Standard 208, and its reaction to the industry's comments, and is necessary to an evaluation of many of the petitioners' challenges to the procedure utilized by the Agency.

A proposed change in the initial Standard 208 was first announced in Notice 1, published on July 2, 1969, entitled "Inflatable Occupant Restraint Systems" (34 F.R. 11148). In this advance notice of proposed rulemaking, the Agency observed that a promising system of restraint, commonly referred to as "airbags," was in the final stages of development and that it would be desirable that such a system be provided on new motor vehicles as soon as possible, and not later than January 1, 1972. Information was requested, and a public meeting was scheduled at which interested parties presented their views on the concept of mandatory, industry-wide installation of airbags (Notices 2 and 3, 34 F.R. 12107, 13480). Written comments were submitted as requested and as required by the APA ? 4(c), 5 U.S.C. ? 553(c).

After a lengthy evaluation of the comments of the manufacturers and other interested parties and newly developed technical information, the Agency issued a notice of a proposed safety standard entitled "Occupant Crash Protection; Passenger Cars, Multipurpose Passenger Vehicles, Trucks and Buses" (Notice 4, 35 F.R. 7187). The proposed rule generally provided a delay in the effective date of a passive restraint system from January 1, 1972 to January 1, 1973. However, during the interim period, passenger car manufacturers were required to substitute a modified restraint system which amounted to an improved seat belt assembly. The proposal set out the procedures to be used in testing the devices and the injury criteria which must be met. A second public meeting was held (Notice 5, 35 F.R. 10120). The interim requirements of the proposed standard were modified to some extent by Notice 6 (35 F.R. 14941), which was published on September 25, 1970.

The Agency held numerous formal and informal meetings and conferences; comments were submitted by more than 120 interested persons. After consideration of these comments and other relevant materials, the Agency issued the passive protection requirements of the standard as a final rule in Notice 7 on November 3, 1970 (35 F.R. 16927). The effective date for passive systems was extended from January 1, 1973, to July 1, 1973, for front seat positions and to July 1, 1974, for all occupants; the injury criteria proposed in Notice 4 were modified in some respects. Notice 8, (35 F.R. 16937) issued simultaneously with Notice 7, was a proposal for further modifications of the standard as to a new requirement that deployable systems should not deploy in impacts of less than 15 miles per hour (mph), and for additional injury criteria for various test modes.

In response to a variety of objections raised in comments and in petitions for reconsideration, the Agency republished Standard 208 on March 10, 1971, as Notice 9 (36 F.R. 4600), a complete and final rule. This notice forms the...